Brice and Comcare
[2007] AATA 1476
•27 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1476
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2005/140
GENERAL ADMINISTRATIVE DIVISION ) A 2005/141
A 2006/8Re ANGELA BRICE Applicant
And
COMCARE
Respondent
DECISION
Tribunal MJ Carstairs, Senior Member Date27 June 2007
PlaceCanberra
Decisions The Tribunal:
(a) sets aside the reviewable decision dated 10 January 2006 and substitutes the decision that Comcare is liable to pay compensation to Angela Brice for fibromyalgia, it being materially contributed to by her employment with the Commonwealth;
(b) sets aside that part of the reviewable decision dated 26 May 2005 that denied liability for permanent impairment for fibromyalgia and substitutes the decision that Comcare is liable to pay compensation for permanent impairment for fibromyalgia; and
(c) remits to Comcare the assessment now required under s 24 and s 27 of the Safety Rehabilitation and Compensation Act 1988, with the direction that Comcare take into account that Ms Brice has a 20% whole person impairment as provided for under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment.
In all other respects the Tribunal affirms the reviewable decision dated 26 May 2005.
Either party may make an application in relation to the costs of the proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders that the applicant’s cost be paid in accordance with s 67 of the Act.
.................[Sgd].................
Senior Member
CATCHWORDS
COMPENSATION – applicant suffered childhood abuse - later workplace harassment while employed by Commonwealth – liability accepted for anxiety/stress – applicant subsequently failed to attend medical examination – suspension of compensation – applicant resigned employment - new claims for anxiety/depression; fibromyalgia; headaches.
COMPENSATION - claim for permanent impairment – assessment.
JURISDICTION - suspension of compensation – whether Tribunal can review suspension decision – whether compensation can be granted during the suspension period.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 37, 57, 60, 62, 64
Administrative Appeals Tribunal Act 1975 ss 25, 43
Long and Australian Postal Corporation AATA [2002] 1333
Australian Postal Corporation v Forgie & Anor (2003) 130 FCR 279
Buck v Comcare (1996) 137 ALR 335
Trajkovski v Telstra Corp Ltd (1988) 153 ALR 248
Chowdhary v Bayne (1999) 29 AAR 100
Re Bessell and Telstra (1994) 35 ALD 660
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Comcare v Sahu-Khan [2007] FCA 15
Comcare v Canute (2005) 148 FCR 232
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
McDonald v Director-General of Social Security (1984) 6 ALD 6REASONS FOR DECISION
27 June 2007
MJ Carstairs, Senior Member 1. Angela Brice was employed at the Australian Electoral Commission from 1992 until 1996. In that time she experienced workplace harassment from an Assistant Commissioner. In 1994 she made a claim for compensation for stress. Comcare accepted this claim and paid her benefits for anxiety/stress, effectively from 1994 to the end of 1996. Ms Brice resigned from the Electoral Commission in November 1996. Independently of this, but about the same time, Comcare suspended Ms Brice’s compensation payments (the “suspension decision”), because she did not attend a medical appointment that Comcare had scheduled for her, also in November 1996.
2. Matters rested there until 2004, when Ms Brice lodged a fresh series of compensation claims. Broadly her claims are that she has an ongoing entitlement to compensation for incapacity and other benefits and for a lump sum payment for permanent impairment, all arising from the harassment at the Electoral Commission. She maintains that the harassment had ongoing effects on her mental and physical wellbeing.
3. Ms Brice lodged three further claims (as now consolidated)[1] in 2004 - that is some eight years after she resigned from the Electoral Commission. These were:
§ for work-caused anxiety/depression; fibromyalgia; and headaches;[2]
§ for permanent impairment from those conditions;[3] and
§ for fibromyalgia as a sequel to the original accepted condition of anxiety/stress.[4]
[1] Another claim was discontinued.
[2] Claim dated 26 November 2004, T70.
[3] Claim dated 8 November 2004, T67.
[4] This did not require Ms Brice to make a separate claim. It was initially considered on 10
4. I should say at the outset that Comcare does not seek to disturb the initial acceptance of liability for anxiety/stress. I observe that in some places in the documents their acceptance of the condition was expressed as an episode of anxiety/stress from difficulties with relationship with supervisor. No copy was provided to me of the actual determination.[5] However it was clear that Comcare’s position now is that Ms Brice recovered from the effects of the harassment, her anxiety related to the harassment resolved, and she does not have ongoing incapacity (related to work, that is), nor has she suffered any permanent physical or psychiatric impairment. Comcare contends that Ms Brice’s medical conditions are explained on other grounds, not related to work. Comcare refused all her new claims.
[5] Assuming those were the terms of the decision, they provide a poor description of injury or
disease for compensation purposes.
ISSUES
5. The issues in this case are:
(a)the nature of any psychiatric or other condition from which Ms Brice suffers, and the relationship, if any, those conditions have with incidents in her employment at the Electoral Commission; and
(b)whether Ms Brice suffers injury, incapacity or impairment compensable under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
6. At the outset, Ms L Walker, counsel for Comcare, submitted that the suspension decision bars payment of compensation to Ms Brice within the period (the ‘suspension period’) commencing with the suspension decision and ending when Ms Brice attended a medical appointment on 20 January 2005 for the investigation of her new claims. The SRC Act makes provision for suspension under s 57 in circumstances where a person fails to attend a medical appointment without reasonable excuse. Ms Walker says that the suspension decision is one kind of decision that the Tribunal is unable to review.
7. That contention raises a question of jurisdiction that must be addressed first. The suspension decision potentially affects Ms Brice’s claims for ongoing incapacity (s 19 of the SRC Act) and for medical expenses (s 16 of the SRC Act) insofar as those claims relate to the suspension period. It does not affect her claims for permanent impairment.
8. Before deciding the jurisdictional question it is helpful to consider the broader background to the original compensable injury and to the suspension decision.
GENERAL BACKGROUND
9. Ms Brice worked for the Australian Electoral Commission from 1992 to 1996. She was then in her early twenties and commenced working as an ASO1 in Resource Management. By 1995 she was acting as an ASOC3 in various roles, including at times reporting directly to the Assistant Commissioner against whom she brought harassment charges. The evidence suggests that a number of women at the Electoral Commission had similar perceptions about this man and Ms Brice joined them in taking the issue to the Human Rights Commission. As I understand it, Ms Brice received a written apology from the Assistant Commissioner.
10. These problems led her to make the compensation claim for anxiety & stress.[6]
[6] Claim dated 23 November 1994, T8.
11. Ms Brice took stress leave from the end of 1994. Thereafter, the documentary materials reveal that there were attempts, largely unsuccessful, to assist Ms Brice to return to work. Apart from one brief period in early 1995, Ms Brice did not return to work and received incapacity payments. On 1 November 1996 she tendered her written resignation and this was reluctantly accepted (as I will later explain). Ms Brice has not worked since she resigned.
BACKGROUND TO THE SUSPENSION DECISION
12. At the time of her resignation, Ms Brice had already been notified about the medical appointment (the failure to attend which resulted in the suspension decision). It seems from contemporary documents and from what Ms Brice has said since, that she believed that, having tendered her resignation, she was not required to attend the medical appointment.
13. For some time before her resignation the employer and the rehabilitation provider had expressed their concerns to Comcare about Ms Brice’s lack of cooperation with attempts to assist her return to work. She was warned about the consequences of not attending rehabilitation meetings.[7] On 22 October 1996 Ms Shaw, a contact officer with the Electoral Commission, warned Ms Brice:
I would like to remind you that in applying for compensation payments, you are also applying for rehabilitation. ….If you do not contact…by 1 November 1996 to discuss the work contact visits, I will be asking Comcare to suspend liability…[8]
[7] Letter dated 13 July 1995, T27; letter dated 26 July 1996, T39; letter dated 22 October 1996, T50;
letter dated 22 October 1996, T54; letter dated 11 November 1996, T57; letter dated 14
November 1996, T59.
[8] T54, p173.
14. That letter also gave details of the scheduled medical appointment. Within days of the letter, however, Ms Brice had resigned. But the resignation was not immediately accepted. A meeting was attempted involving Ms Brice, Ms Brice’s mother, the rehabilitation consultant dealing with the case, Ms Shaw and possibly a representative of the Ombudsman’s office to discuss the resignation. The meeting did not proceed because Ms Brice could not be convinced to attend. Ms Shaw then wrote to Ms Brice, referring to the aborted meeting.[9] In the letter she noted that she could not refuse an employee’s resignation, but suggested that it might be wise to discuss the options before proceeding with it. The letter continued:
The most significant impact of resigning will be in relation to your compensation claim. You should be aware that if you resign you will not have an automatic right to any future incapacity payments or reimbursement of medical expenses…Your failure to attend the medical examination that Comcare arranged for you on 11 November 1996 has increased the likelihood that Comcare will suspend liability from 25 November 1996.
…
In order to give you time to reconsider your decision, I do not intend to accept your resignation until close of business on 28 November 1996. If I have not heard from you by that date it will be accepted.[10]
[9] Letter dated 14 November 1996, T59.
[10] T59 pp 182-183.
15. On 11 November 1996 Ms Brice was given the opportunity to explain her non-attendance.[11] She did not do so. That letter told Ms Brice that her failure to attend the medical appointment meant that her rights to claim compensation for medical treatment and incapacity would be suspended under the provisions of s 57(2) of the SRC Act, with effect from 1 December 1996. It continued:
This suspension will apply until such time as you agree to and do attend an appointment for specialist assessment.[12]
[11] T57.
[12] T61, p185.
16. Nothing happened thereafter until a series of fresh claims were lodged from late 2004. What then happened was that Comcare pointed out to the solicitors for Ms Brice that the effect of the suspension decision was that, for the new claims to be considered, Ms Brice needed to attend a medical review.[13] Ms Brice consented to this,[14] but also explained that she had a genuine belief at the time that once she had resigned she did not have to attend a medical appointment.[15]
[13] T72.
[14] T76.
[15] T77.
WHAT IS THE EFFECT OF THE SUSPENSION DECISION?
17. Section 57 of the SRC Act, provides that:
(2)Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
…
(5)Where an employee’s right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
18. What does the suspension decision, made under s 57(2) of the SRC Act, mean for the fresh claims Ms Brice lodged in 2004/2005? To answer this question, one must turn to the legislative provisions both in the SRC Act, and in the Administrative Appeals Tribunal Act1975 (the AAT Act).
19. I should say at the outset that it can be important in the context of administrative review, in deciding questions of jurisdiction, to clearly identify what a person seeks in review. In that regard, I observe that not only did Ms Brice not agitate the suspension decision when it was made in 1996, but her solicitors do not appear to have raised the suspension decision for review directly at the time Ms Brice made her new claims in 2004/2005. However, I accept that a request for review might be inferred from references in letters exchanged between her solicitors and Comcare referring to Ms Brice’s beliefs about the effects of her resignation as grounds of reasonable excuse.
20. For a matter to come before this Tribunal there must be a reviewable decision. To be reviewable, provision must be made in an enactment that empowers the making of an application to the Tribunal for the review of that decision.[16] Where the Tribunal has jurisdiction to review a decision, it has available to it all the powers and discretions conferred on the decision-maker under the enactment, as relates to the decision under review.[17]
[16] Section 25 of the AAT Act.
[17] Section 43(1) of the AAT Act.
21. These broad principles, in the context of suspension decisions made under provisions in the SRC Act, (specifically, suspensions under s 37 and s 57 of the SRC Act), whilst contentious in the past, were fully explored in Long and Australian Postal Corporation AATA [2002] 1333, and approved on appeal in Australian Postal Corporation v Forgie & Anor (2003) 130 FCR 279 (APC v Forgie). Until APC v Forgie, a line of Federal Court decisions had concluded that the suspension provisions, being “self executing”, were not amenable to review: see Buck v Comcare (1996) 137 ALR 335; Trajkovski v Telstra Corp Ltd (1988) 153 ALR 248 and Chowdhary v Bayne (1999) 29 AAR 100. The Full Federal Court re-examined this in APC v Forgie. That case dealt with suspensions under s 37 of the SRC Act. Section 37 provides for suspension where an employee fails without reasonable excuse to undertake a rehabilitation programme and the section is identically worded to the suspension provisions in s 57 of the SRC Act. The Full Federal Court confirmed in APC v Forgie that the Tribunal does have power to review suspensions under s 37.
22. The review rights accorded to s 37 and s 57 of the SRC Act are quite different, and it might be thought that, to that extent, APC v Forgie is not directly on point. However the case reinforces a number of matters to do with review of decisions in the context of the SRC Act, with reference to the requirement of s 25 of the AAT Act.
23. On questions of jurisdiction in the SRC Act one must start with s 64, which confers jurisdiction on this Tribunal to review a reviewable decision. A reviewable decision, so far as is relevant here, is a decision made on review (or reconsideration) under s 62, and can only be made with reference to determinations. These are identified and defined in s 60 by reference to listed sections within the SRC Act. Notably, this definition of determination does not include decisions made under s 57 of the Act. In contrast, the suspension under s 37 that the Court considered in APC v Forgie was amongst the listed sections referred to in the definition of determination in s 60.
24. The decision in APC v Forgie, whilst dealing primarily with suspensions under s 37, made reference to the different review rights that applied to s 57 of the SRC Act and noted the exclusion of s 57 from the definition of determination. The Court also observed that the broad definition of determination and its application to specific sections of the SRC Act was consistent with the intention to give a wide measure to merits review but only within the boundaries set out within s 60 (and consequently in s 62 and s 64 of the SRC Act).
25. At one point in the reasons, the Federal Court reflected upon why these two similarly worded suspension provisions might attract different administrative review rights. The Court accepted (at paragraph 65) that there was a coercive side to any suspension powers under the SRC Act. As to the seeming inconsistency between the merits review provided for suspensions under s 37, but not those under s 57, the Court said:
It is not necessary to speculate about the policy reasons for the distinction but it cannot be said to be irrational. It might well be considered, for example, that the requirement to attend a medical examination…is much less onerous and more transitory than the obligation to comply with a rehabilitation program. Thus it may have been considered that merits review in relation to s 57 (in its entirety…) was not necessary to avoid unfairness to individual employees.[18]
[18] Per Black CJ, Merkel and Stone JJ at paragraph 74.
26. Mr L Grey, counsel for Ms Brice, approached the argument in support of the Tribunal having merits review powers despite the clear exclusion of s 57 suspensions from the ambit of determination in s 60 of the SRC Act in this way:
§ There is no express intention evident in the SRC Act that leads to a result that a person will be deprived of their proper entitlements to compensation on the basis of what is merely a procedural requirement to attend a medical practitioner. If there were such an intention the Act would have provided for cancelling rather than merely suspending compensation.
§ Even assuming that the Tribunal is prohibited from reviewing the suspension decision, it nevertheless was seized of jurisdiction to review a determination that referred to the suspension decision,[19] because a delegate specifically reviewed the question of Ms Brice’s entitlements during the suspension period, rather than denying her rights of review for that period. The delegate’s determination was then the subject of a reviewable decision, which affirmed the determinations,[20] allowing this Tribunal to be seized of jurisdiction in respect of it because a reviewable decision is all that is required by s 64 of the Act.
§ The Federal Court decision in Trajkovski mandates that the Tribunal must consider the question of whether Ms Brice had a reasonable excuse not to attend the medical appointment. If she had a reasonable excuse, the suspension was never properly imposed.
[19] T 89, dated 23 February 2005.
[20] 26 May 2005, T99.
27. Mr Grey made an additional submission to the effect that s 57(1) of the SRC Act, by stating that Comcare may require the employee to undergo an examination by one qualified medical practitioner did not allow Comcare to require an employee to attend a number of medical practitioners. He says that Comcare was doctor shopping in Ms Brice’s case, and seemingly were not prepared to accept medical opinions that supported her entitlement to compensation. Even if Mr Grey were right about such motives, Tribunal authorities support Comcare’s right to send an employee to more than one doctor: Re Bessell and Telstra (1994) 35 ALD 660. More importantly, Mr Grey’s submission does not assist in ascertaining the Tribunal’s jurisdiction. His submission goes to the merits of the decision under review. If I am unable to review the decision, the question of interpreting s 57(1) of the SRC Act will not be for me to consider.
28. Mr Grey’s other submission was that s 57 appears in a Part of the Act that deals with procedural matters, not intended to affect substantive rights. It is true that Part V of the SRC Act, headed “Claims for Compensation” deals with the making and processing of claims and other procedural matters. However Part V also provides for a range of rights and responsibilities, and many of its provisions have “substantive” implications. Two examples suffice: s 54 provides that compensation is not payable without a claim in writing; s 53 provides that an employee must provide written notice of injury.
29. However Mr Grey submits that the SRC Act, being beneficial legislation, carries no intention that failing to attend a medical appointment will permanently deprive claimants of their rights to compensation. He said if it did, the Act would provide for cancellation for failure to attend a medical examination, not simply for suspension, which by its ordinary meaning means a temporary extinguishment of a right. Superficially attractive though that argument might be, it has more force, it seems to me, where the legislative context allows a choice between suspension and cancellation, which is not the case in the SRC Act. More fundamentally, Mr Grey’s submission on this point does not overcome the plain absence of s 57 decisions from amongst the kinds of decisions which can be the subject of merits review by this Tribunal.
30. It is abundantly clear, in the context of an Act whose express purpose is the rehabilitation of employees….and workers’ compensation that medical examinations will be required in order to determine not only initial and ongoing entitlements to compensation, but also to deal with rehabilitation issues; to determine any additional claims; to assess treatment options; or to establish whether a condition has improved or resolved. The Full Federal Court in APC v Forgie no doubt had such considerations in mind when they referred to the policy issues behind removing s 57 from those matters for which merits review is available.
31. Furthermore, as pointed out by Ms Walker in submissions, an employee suspended for failure to attend a medical examination is not left without remedy, but it is limited to judicial review.
32. Nor do I accept Mr Grey’s other submission that the Tribunal has jurisdiction because two Comcare delegates have reviewed the question of Ms Brice’s entitlement as they relate to the suspension period. Given the effect of the Court’s reasoning in APC v Forgie those reviews were beyond power, because s 57 decisions are not determinations that the review officer could review.
33. There are some circumstances where a decision taken beyond power will be reviewable,[21] but there must, even in such a case, be power in this Tribunal to review the decision. So it does not affect the outcome that in Ms Brice’s case there was a decision that purported to be a reviewable decision dealing with the suspension decision. The wrongful assumption of power by the decision-maker cannot confer jurisdiction on the Tribunal if it does not otherwise exist.
[21] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.
34. The final matter in Mr Grey’s submissions was that in Trajkovski the Federal Court held that the Tribunal is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a reviewable decision. The applicant in Trajkovski had sought the review of two decisions: the decision about his overall entitlements, as well as the suspension decision. When the matter was before the Tribunal in Trajkovski, the Tribunal had declined to consider the substantive matter (compensation entitlement) because of the effect of the suspension decision on Mr Trajkovski’s rights to institute or continue any proceedings under this Act. But Ms Brice’s situation is quite different. The suspension decision was lifted when Ms Brice consented to a medical examination,[22] whereas in Trajkovski the suspension was still in place at the time of the Tribunal review. In Ms Brice’s case there is no impediment to considering all her substantive claims.This means that I do not have to consider the question of whether she can proceed with her substantive claims made in 2004 and 2005. The suspension having been lifted there was no ongoing bar, pursuant to s 57(2) of the SRC Act, preventing Ms Brice instituting or continuing proceedings under the Act.
[22] T76.
35. In summary:
§ I have no power to review the merits of the suspension decision;
§ I agree with the respondent’s submission that a suspension decision for failure to attend a medical examination will have the consequence that an employee will be denied compensation for the period of the suspension.
36. This result may seem harsh, but it seems clear to me that this is the intention of the provision.
37. Even if the applicant were correct to say that the Tribunal could look at arrears for payments such as those for incapacity or medical expenses in the suspension period, the facts here do not warrant doing so. Ms Brice had no reasonable excuse for not attending the medical appointment in 1996. I do not accept that her belief that she was no longer employed by the Electoral Commission would provide a basis for reasonable excuse, even if it were true that she mistakenly believed the Electoral Commission and Comcare were the same entity. She was being assisted by a compensation adviser at the time. She had experience through a previous compensation claim for the motor vehicle accident. It seemed to me unlikely that she in fact held such a belief. The tenor of her oral evidence was that she was happy to be out of the workplace, an attitude perhaps understandable in view of her fragile mental state at the time. However I would not regard this as providing reasonable excuse were these matters for me to decide.
PSYCHIATRIC DISORDER
past history
38. I turn then to a consideration of the underlying claims. It is important to appreciate at the outset that Ms Brice’s case reveals a complex medical and psychiatric history. Most significantly she was subjected to abuse as a child and the medical practitioners are united in agreement that this explains her vulnerability to workplace harassment.
39. To summarise some of this complex history I have drawn upon matters in the applicant’s Chronology provided to me at the hearing, and sundry medical records:
§ Ms Brice was subjected to sexual abuse in the period 1977-1979 (that is when she was aged between 7 and 9 years). Ms Brice’s sister, Ms Moira Arrigo confirmed aspects of these events.[23] Ms Brice filed a complaint about sexual abuse with the Australian Federal Police in 2000 but the investigation concluded that there was insufficient evidence to proceed on any of Ms Brice’s allegations.[24]
§ At the age of 17 Ms Brice took unprescribed Serepax tablets and was admitted to hospital, under the care of psychiatrist Dr Mickelburgh. She was referred to psychiatrist Dr Lee.
§ In 1991 she was severely injured in a motor vehicle accident sustaining a fractured pelvis, dislocated hip, facial lacerations, whiplash and soft tissue injuries. She was hospitalised for two weeks and off work for four months. This accident was followed by surgery in 1994 and 1997 for ongoing problems with her hip. Hospital notes from that admission showed that she was at times rambling and incoherent.
§ In about December 1994 (around the time that she complained about the harassment at work and lodged her compensation claim) Ms Brice began having flashbacks about the sexual abuse as a child. She commenced counselling and hypnotherapy with a psychologist, Ms S Henderson. In December 1994 she was seen by psychiatrist, Dr F H Lowden and admitted to Woden Valley Hospital as an involuntary patient.[25] Hospital notes referred to possible post traumatic stress disorder on the basis of rape as a child, the memory of which came after release of repressed memories. Dr Lowden stated that he considered that Ms Brice had paranoid psychotic features following hypnosis treatment by her psychologist.[26]
§ In July 1997 Ms Brice was admitted to Canberra Hospital after being detained by police at a hotel. The ACT Mental Health Tribunal made an involuntary detention order until August 1997 and a custodial treatment order that expired on 5 September 1997 on her discharge from Canberra Hospital. Mr Grey agreed that this was a psychotic episode and the hospital notes at the time reflect this. They refer also to recent Benzodiazepine consumption and other drugs. I accept the accuracy of those records in preference to Ms Brice’s denial of the abuse of those drugs.
[23] Exhibits A20 and A21.
[24] Exhibit A1.
[25] Described in the material as an “emergency action order”.
[26] Exhibit R6.
40. I accept that Ms Brice was subjected to some sort of abuse as a child. In reaching that conclusion I was mindful that some of her allegations were highly improbable, and it seems that she retracted others made against certain members of her family. I was also mindful that there were references suggesting that some of her treating and reporting practitioners were sceptical about the extent that Ms Brice’s recollections were true. However, in common with Dr Veness, I think it is significant that there was corroboration on certain points from another sister. I doubt that Ms Brice would have taken matters as far as trying to lay charges if there had been no basis to them at all.
41. Ms Brice did not strike me as dishonest, although she was selective in what she presented, particularly to doctors. It was evident from a number of reports that she favourably impressed doctors as a person who was trying to give an accurate account - as she saw things. This of course does not mean that what she said was accurate, and it was clear to me that she did not provide the complete version of events on all occasions. She has plainly reconstructed some of the events and persuaded herself of the truth of the allegations she now makes. But I formed the impression that her views were sincerely held, although she seemed to be preoccupied with aspects of her health.
42. I was invited to be sceptical about the factual basis of the repressed memories of childhood abuse. Of those events I can form no detailed concluded view, and I accept that scepticism is warranted. Nevertheless I do accept that Ms Brice experienced events in childhood, of which she and her sister have some recollections, that left her psychologically damaged, and that she came to recall these soon after she took stress leave following the harassment at work.
43. It is also difficult after the passage of time to assess the importance or otherwise of the 1987 admission in the context of Ms Brice’s overall psychological profile. Ms Brice and her mother, Mrs Alma Brice, sought to make light of it in their evidence, to which I must say, I assigned little weight. By now their recollections are understandably hazy. I consider that the medical notes made at the time are the more reliable source. The general practitioner who organised the 1987 admission was uncertain himself whether this was simply adolescent turmoil.[27]Equally uncertain was psychiatrist Dr Mickelburgh. But another consultant psychiatrist to whom she was referred, Dr T Lee, diagnosed an affective disorder (depressive type) and prescribed Prothiaden.
[27] Exhibit R6.
44. Some account must be taken of the 1987 episode. I do not accept, as Ms Brice maintained, that the doctors reporting at the time were totally in error. For instance, it seems more likely than not that Ms Brice’s family, who attended psychiatrist Dr Lowden on 7 December 1994, provided Dr Lowden with the information recorded in his report dated 29 December 1994 that Ms Brice had made a previous suicide attempt at the age of fifteen.[28] However, so much time has passed since then that it is unlikely that any medical practitioner involved could shed any more light than is revealed by their contemporaneous notes. Those medical practitioners were not called to give evidence. However I accept Mr Grey’s submission that whatever was the source of the problem in 1987 that led to Ms Brice’s brief admission with a suspected overdose, her condition settled. There was no evidence that she continued presenting with ongoing psychiatric problems.
[28] Exhibit R5.
45. Equally, the notes of her admission to hospital in 1991 after the motor vehicle accident were quite ambiguous and inconclusive. I found them of little assistance. Again no evidence was called from the authors of the hospital entries.
46. Thus it does not seem to me that much can be gleaned with any confidence from the alleged past incidents relating to admissions to hospital in 1987 and 1991. The more significant reports commence with those prepared at the time that Ms Brice first left work on stress leave after making her complaint of workplace harassment. In that regard, and in order to identify the contribution of the harassment as part of the contributing factors to Ms Brice’s present psychiatric impairment, it is important to have an appreciation of what she said happened to her at work.
47. For that, one can turn in the first instance to Ms Brice’s written statement in support of her original claim, setting out her perceptions of the harassment by the Assistant Commissioner.[29] Ms Brice has never alleged that he engaged in any physical contact with her. Her complaints have always been about more indirect forms of harassment - aspects of his behaviour towards her, his remarks to or about her, and his intimidating manner. What bothered her were personal remarks referring to her good looks, remarks which she observed the Assistant Commissioner tended to make in the presence of others, which contributed to her feelings of discomfort. He also would stand uncomfortably close to her. Ms Brice has always reported to doctors that the nature of the harassment was more indirect than direct.
[29] T9.
48. I should say at this point that I was impressed that Ms Brice did not overstate or exaggerate what took place between herself and the Assistant Commissioner. I thought that she conveyed quite clearly, without exaggeration or embellishment, how the Assistant Commissioner’s behaviour bothered her, in a way that it might not have bothered a more robust person. She said, and I accept, that she found him intimidating, and was upset by the innuendo she perceived in his remarks. Whenever he was near, she was anxious. She developed symptoms such as gastro-intestinal troubles. She discussed it with her mother who told her just to ignore him, and others gave the same advice. Ms Brice said she mentioned it to her general practitioner but that doctor’s notes from the time do not show that.
49. The early medical reports suggested that the effects would be short term. On 16 December 1994 Dr Roger Feltham, Australian Government Health Services (AGHS) Medical Officer, assessed Ms Brice and noted that her anxiety disorder was slowly resolving.[30] He recommended a gradual return to work in suitable circumstances in the early New Year. An attempt was made, which proved to be unsuccessful, and by May 1995 Ms Jill Shanahan, the occupational therapist involved in Ms Brice’s case, terminated the return to work programme after Ms Brice’s general practitioner and treating psychologist said that Ms Brice was too anxious to participate.[31] The same month she was sent to Dr A Lark, occupational physician with the AGHS who expressed his belief that she had developed significant psychiatric disability and should be referred to a psychiatrist.[32]
[30] T67.
[31] T19.
[32] T67.
50. The first psychiatric report of any depth after the harassment at work was that of Dr Nathar in July 1995.[33] Ms Brice disclaimed to him having had any past psychiatric problems, or family history of psychiatric disorder. He observed that her affect at the interview was normal but he perceived her to be a person who could easily be bullied or taken advantage of. Dr Nathar diagnosed Ms Brice as suffering a generalised anxiety disorder with post traumatic stress features. He concluded that there was a link between her condition and her employment, the link being that her experience of childhood sexual abuse would render her somewhat ineffective in dealing with overbearing or authoritative male figures. Ms Brice had revealed to him that she had the recent re-emergence of her repressed memories. Dr Nathar stated that if Ms Brice had perceived the Assistant Commissioner as sexually harassing her, then this could trigger and bring out into the open the underlying repressed memories, thereby producing partial post traumatic stress disorder and an anxiety reaction.
[33] T28.
51. Dr Nathar assessed Ms Brice as capable of returning to work within 3 to 6 months, on a part time basis, but the effects of the harassment could last up to 12 to 18 months. He also observed that people suffering the effects of childhood sexual abuse can be difficult to treat and if she did not improve then she should be referred to a consultant psychiatrist. I understood Dr Nathar to be referring to the need for such a referral to deal with issues of childhood sexual abuse, not the compensable injury.
52. A year later Ms Brice was seen by Dr I Jones.[34] Dr Jones confirmed with Ms Brice that Dr Nathar’s recorded history was accurate. He confirmed in particular that there were no direct physical advances made upon her by the Assistant Commissioner but that she experienced anxiety by his encroaching on her physical space and innuendo causing her apprehension. Like others, Dr Jones observed that Ms Brice was timid, softly spoken and reticent. Ms Brice also told Dr Jones that she had no past psychiatric consultations.
[34] T35.
53. Dr Jones considered that Ms Brice’s symptoms of anxiety had improved from those observed by Dr Nathar – some were still present but they were less pronounced. Dr Jones thought she would be able to return to work within about a month. He recorded Ms Brice’s continued complaints of tiredness, sore muscles and aching hands, despite not working.
54. In relation to the harassment, Dr Jones said that Ms Brice held sincere, but not necessarily accurate, perceptions of the situation. However he was of the opinion that harassment (as perceived by her, whether accurately or not) aggravated her underlying predisposition to anxiety.
55. Dr H V Veness, consultant psychiatrist, first saw Ms Brice on 13 March 2000. His reports were exhibits A4, A5 and A6. Ms Brice told Dr Veness that when she went to see her psychologist Ms Henderson in 1994, Ms Henderson was treating her reaction to the harassment, but during the course of the therapy Ms Brice experienced the revived memories of childhood sexual abuse.[35]
[35] Exhibit A4 report dated 10 August 2005.
56. Ms Brice told Dr Veness that she had feelings of embarrassment, humiliation, and intimidation at the treatment accorded to her by the Assistant Commissioner, although he never physically interfered with her. Ms Brice described feelings of anxiety. She also said that she continued to feel anxious even though not at work because she felt pressured by her rehabilitation provider to apply for jobs when she felt completely unfit to work. Dr Veness accepted Ms Brice’s reported pain, which from 1995 began to complicate her clinical picture. She described her symptoms as starting in her hands and moving to her upper limbs and neck. Dr Veness accepted the conclusions of Drs Brook and Champion (see further below under Fibromyalgia) that Ms Brice had a chronic neuropathic pain syndrome.
57. At the time of her next attendance in August 2005, Dr Veness was able to say that Ms Brice’s anxiety was less prominent; she was sleeping well, without the interference of dreams about the Assistant Commissioner, or the childhood sexual abuse, which Dr Veness said seemed to have resolved. In oral evidence Dr Veness emphasised that Ms Brice was cocooned by her relationship with her partner Alan Turner. But he observed that she fatigued easily, and he took a history from Mr Turner that her anxiety levels rose if she was pressured. Dr Veness diagnosed Ms Brice as having generalised anxiety disorder with post traumatic features. In oral evidence he said that he could not suggest any treatment now that would make her well.
58. Dr Veness, when commenting on the causation issues, said that Ms Brice had no apparent psychiatric disorder until her encounter with the Assistant Commissioner. Dr Veness subsequently was provided with other materials including her treatment at the psychiatric unit of Canberra Hospital in 1997, where she was diagnosed as suffering a psychotic episode. He said that this information did not cause him to change his original views about the significance of the harassment. Dr Veness did seem to accept as a possibility that Ms Brice may have been abusing substances, but he said there was no evidence of this in his consultations.
59. In oral evidence Dr Veness said that he considered Ms Brice to be a vulnerable person, susceptible to the workplace harassment she experienced, which then acted as a trigger for her repressed memories. He said that he was generally sceptical about repressed memories being recovered (I took it that he meant that memories can be manufactured or suggested to people under hypnosis, without necessarily being grounded in truth), but he said that in Ms Brice’s case her sister had similar recalled memories. He said he believed Ms Brice also because of her straightforward, not histrionic, manner.
60. Support for Ms Brice came also from her general practitioner, Dr Moulding. He provided a report with the first of her new claims in 2004, that being for incapacity, medical expenses and permanent impairment for anxiety depression, adjustment disorder fibromyalgia and headaches. Dr Moulding said he had been in practice for 26 years and had first seen Ms Brice in 1994, but infrequently until 1997. He acknowledged that he was not an expert in psychiatric matters, but he observed that in his treatment of her, she had remained much the same over time – no real deterioration, but no improvement. He said she has chronic anxiety and was not in a fit mental state to perform work.
61. Dr Moulding referred Ms Brice in 2001 to Ms K Lubbe, psychologist, who recorded the history as being that Ms Brice was off work from 1995 because of harassment. Ms Lubbe noted that Ms Brice had started to remember episodes of abuse as a child, and that raising this with her family had caused disruptions, which Ms Lubbe said splintered the family in 1996 and 1997, with the result that Ms Brice has no contact with a brother and a sister against whom she had levelled allegations.
62. When Ms Brice lodged her claims for anxiety in 2004 Comcare sent her to Dr G George, psychiatrist. Dr George took much the same history about the harassment issue as had others who had reported, and Ms Brice told him that she had suffered from fibromyalgia for ten years (but Dr George observed that this had been a clinical assessment without any objective testing). She told him she had never been under the care of a psychiatrist but had undergone psychiatric consultations. Dr George concluded that she had elements of a somatoform disorder in the context of an accepted diagnosis on her part of fibromyalgia.[36] He thought that her current condition was related to her employment, as a conversion of her anxiety into physical problems. He said that she was vulnerable, having been abused as a child, and this led to her problems with the harassment in the workplace which then developed into a chronic problem that she now had.
[36] T83.
63. The other psychiatric reports were those of Dr Yvonne Skinner.[37] Ms Brice told Dr Skinner about the childhood sexual abuse and how her recollections of this had emerged suddenly after the harassment at the Electoral Commission, and her subsequent treatment with hypnotherapy. Ms Brice told Dr Skinner about the motor vehicle accident in 1991 and described having fibromyalgia symptoms over her whole body. Ms Brice observed that her anxiety definitely had improved. Dr Skinner at this first consultation was aware of the background of Ms Brice having a Serepax overdose in 1987 and the reports of Drs Lee and Mickelburgh from that time. On that history, Dr Skinner adverted to the indications of previous psychiatric problems and concluded (similarly to Dr Nathar) that this sensitized Ms Brice to perceive sexual harassment. That is, the work harassment aggravated a pre-existing psychiatric disorder.[38]
[37] Exhibit R1, dated 21 November 2005; exhibit R2, 2 page report dated 21 November 2005;
exhibit R3, report dated 2 June 2006.
[38] Exhibit R1, p10.
64. As to Ms Brice’s condition at the time of Dr Skinner’s report, Dr Skinner concluded that she still had an underlying anxiety condition, but one attributable to childhood sexual abuse. She also referred to the severe motor vehicle injuries and the family conflicts that ensued after Ms Brice raised the allegations of childhood abuse within her family. Dr Skinner considered that the aggravation of anxiety (insofar as that related to workplace harassment) came to an end, or was somehow overtaken by the impact of the re-experiencing previously repressed memories of childhood abuse. In any event Dr Skinner did not consider that Ms Brice had any incapacity for work due to a psychiatric condition, but she would always be an emotionally vulnerable person, due to the anxiety condition as related to early childhood abuse.
65. Thus, while Dr Skinner considered Ms Brice was 20% impaired under the Comcare Guide to the Assessment of the Degree of Permanent Impairment, needing supervision and direction in activities of daily living, she concluded that none of this was work-related.
66. Dr Skinner’s views that Ms Brice’s present psychiatric condition was not related to her work at the Electoral Commission were further galvanised when she was provided with clinical records relating to the 1987 admission, the 1991 admission (following the motor vehicle accident) and the 1994 and 1997 admissions to Canberra Hospital. Dr Skinner said that on the basis of exposure to these materials, she now considered that Ms Brice suffered from a more serious underlying psychiatric condition, which might be psychotic or could be the result of substance abuse. To the extent that Dr Skinner amended her original opinion it was in the following particulars:
§ She no longer considered that her psychiatric condition was work related, and now considered it might be aggravated by substance abuse.
§ She now considered that she had been overly optimistic about prognosis. It was more likely that Ms Brice was incapacitated for work and could require treatment.
67. However Dr Skinner did not depart from her conclusion that it was possible that Ms Brice had suffered an aggravation of underlying anxiety while working at the Electoral Commission. By December 1994, according to Dr Skinner, this was overtaken by distress arising from the recovered memories and the family turmoil. In 1994, Dr Skinner considered Ms Brice was suffering a more serious paranoid disorder and in 1997 a psychotic mental breakdown.[39]
[39] Exhibit R3, p 8.
DOES MS BRICE’S ANXIETY CONDITION RESULT IN INCAPACITY FOR WORK OR IMPAIRMENT?
68. Ms Brice’s case is one where there is a complex and lengthy psychiatric history. There is scant evidence from the 1987 admission and it is my view that not much significance can be assigned to the 1987 and 1991 episodes (which, however, raised sufficient concerns for psychiatrists to document symptoms and make potentially significant diagnoses at the time). These episodes nevertheless took place, and something must be made of them in the longitudinal history. It seems to me that better-informed medical opinion would only be based on a doctor having that information about Ms Brice’s past history, rather than being left unaware of it. Otherwise a doctor might be led, inadvertently, to ascribe too much significance to the workplace harassment, more than her history taken as a whole suggests it should have.
69. To that extent I think the proposition is correct that, of all the doctors, Dr Skinner was in the best position to assess Ms Brice’s psychiatric profile because she was the only one who had the complete history in front of her. It was evident that Ms Brice was selective in what she revealed to doctors. I would not say that she was dishonest, and there was much that was consistent in her history which was evident in her statements and in what she said to doctors. But it was also abundantly clear that she did not reveal all that she might have about her psychiatric profile when she went to medical examinations. She was most defensive when questioned about this at the hearing. I found Dr Skinner’s reports well reasoned, and she was in a better position to reach conclusions, because she had all the information about episodes of psychiatric disturbance.I accept her opinions on causation expressed in her final report and consider them to be reasonable.
70. It seems important in considering the relative contributions made by harassment in the workplace and other factors that the harassment that Ms Brice experienced was indirect, and involved no physical interference with her. I make those remarks, not in any way to discount the impact of the harassment on her, but to observe that the professional opinions are in solid agreement that Ms Brice was more vulnerable to any level of harassment because she was abused as a child. Remarks and behaviour that a more robust person might make light of were deeply affecting to her. But it is important in weighing up the relative contributions of a number of factors, firstly to note that Ms Brice had the vulnerability from childhood, so that was quite unrelated to work, and secondly that she began to experience her repressed memories about the time that she left work because of her stress over the harassment. Even if harassment might have triggered her recall, in no meaningful or ongoing sense could it be said to be causative of all that happened thereafter to Ms Brice.
71. It seems to me that the chain of causation runs from vulnerability as a result of childhood sexual abuse, to suffering compensable injury (once she experienced harassment at work). It does not run from harassment at work (as a vulnerable person) to the experience of repressed memories which then are attributable in an ongoing sense to the harassment. If so, that would put at nought the occurrence of childhood sexual abuse itself as part of the causative processes in Ms Brice’s psychiatric profile. It is not sufficient to say that Ms Brice did not experience the repressed memories until she was harassed at work. That provides a purely temporal connection on the facts here, and one having the potential to cloud an understanding of the processes of causation overall.
72. What seems to have happened next in Ms Brice’s life is that her experience of repressed memories being revived during 1995 and 1996 took on a great significance, subsuming other things. It seems no exaggeration to say that it fractured her family relations. Her allegations about being interfered with in her childhood became more and more bizarre. It cannot have been other than a very difficult time for the whole family. She was still so preoccupied and concerned in 2000 to approach the Police to lay charges about the childhood abuse. But did the harassment cause this? In my view clearly not.
73. Ms Brice and Mr Turner (Ms Brice’s partner) sought to minimise the impact of the experience of reliving the previously repressed memories through the psychotherapy, and sought to maximise the ongoing effects of Ms Brice’s experience of harassment in her life. For instance, in his written statement Mr Turner spoke of the psychotherapy sessions as gentle and that Ms Brice was matter of fact in dealing with these memories. According to Mr Turner her recalled memories in no way worsened Ms Brice’s condition, which was already rock bottom.[40] I consider that evidence was quite self serving.
[40] Exhibit A8.
74. The better view is that any anxiety that was related to harassment at work would come to an end when Ms Brice ceased to interact with the source of the harassment – subject to a period of recovery. In that respect I accept the evidence of Dr Skinner in her first report. However I would not see the anxiety effects stopping immediately upon Ms Brice’s removal from the source of harassment. I consider Dr Veness correct in his opinion that the anxiety state resulting from the harassment would take time to resolve. It is important also to observe that the psychiatric reports during 1995 and 1996 indicated that Ms Brice was on the way to recovery, as could be expected once she was removed from the source of the anxiety. I accept the opinion as expressed by Professor Jones in 1996 that if Ms Brice’s anxiety did not resolve once the stressor was removed, then one needed to look to other causes. The causes in my view were the ongoing effects of the post traumatic reaction to childhood abuse. It seems to me that the harassment at work took on less significance when she had to deal with re-experiencing the childhood memories. A more accurate assessment of the real impact on her is what Ms Brice reported in her statement to the Federal Police on 13 April 2000:[41]
These flashbacks have caused me enormous emotional and psychological trauma. When I first started remembering I would cry for hours at a time, felt insecure and had trouble sleeping. I went into therapy at the start of 1995 with a clinical psychologist. I am still continuing with this therapy.
[41] Exhibit A1.
75. It is important also to take account of what Ms Brice said in oral evidence about her more recent psychiatric state. She said nothing was troubling her and that she had worked through it all, seeing doctors and reading books. She said she felt a lot better.
76. For these reasons I would affirm the decisions under review as they relate to the anxiety condition. I was satisfied that that injury resolved and Ms Brice has no ongoing incapacity arising from it. She is not entitled to compensation for incapacity or impairment.
FIBROMYALGIA
77. The fibromyalgia claim, which Comcare firstly looked at as a new claim for injury, and refused that claim in a reviewable decision dated 26 May 2005[42] subsequently was examined from the other possible perspective, namely whether or not fibromyalgia might be related to the already accepted condition of anxiety/stress and thus itself come within the definition of disease in s 4 of the SRC Act. This, as an alternate basis of potential liability, was dealt with by determination dated 10 November 2005, and affirmed in a reviewable decision dated 10 January 2006.[43] Both decisions referred to the grey areas of diagnosis of fibromyalgia in Ms Brice’s case. The review officer preferred the evidence that Ms Brice’s (undisputed) complaints of pain were a somatoform disorder of some description.
[42] T99.
[43] T documents A2006/8, T6 and T15 respectively.
78. Ms Walker submitted that I should not be satisfied that Ms Brice has a work caused illness of “fibromyalgia” on the available evidence. As I understood Ms Walker, she did not dispute the diagnosis itself.
79. So what is the available evidence?
80. Firstly Ms Brice says of her symptoms now, that she experiences pain everywhere over her body. Ms Brice said she started experiencing pain in 1994, at first it was mostly in her arms. However she agreed under cross examination that she did not mention arm pain to doctors at the time. She recalled having soreness with activity in 1994 and she recalled also that when she attempted a return to work programme in early 1995 everything was paining. She thought it was due to her stress; but she said in her oral evidence that her general practitioner, Dr Shannon Craft, thought it was muscle pain.
81. This is not a case where Ms Brice raises a connection, 8 years on, of which no mention had been made in medical reports at the time. Ms Brice mentioned her symptoms to doctors who were seeing her for compensation reports before she resigned from the Electoral Commission. In that regard I refer to what Ms Brice said to Dr Nathar in 1995, that when she tried returning to work she was exhausted although only attending 4 hours per day. Dr Nathar reported, her whole body was aching particularly her arms and wrists.[44]She told Professor Jones that even while she was off work she continued to feel tired with sore muscles, aching hands on activity and a range of symptoms of tiredness.[45] Thus, she was reporting these other symptoms, not mentioned in her initial claim.
[44] Report dated 2 August 1995, T28.
[45] Report dated 1 April 1996, T35.
82. The first reported diagnosis of fibromyalgia appeared in a 1999 report of Dr Andrew Brook, rheumatologist, whom Ms Brice attended on referral from her general practitioner.[46] The history as set out by Dr Brook made reference to the harassment at work, in a context of past childhood abuse. Dr Brook noted that Ms Brice had developed, following the harassment, widespread pain most troublesome in her hands but, he said, on questioning it involves most areas but it is not particularly spinal.[47] He said it was chronic. His clinical findings were of tenderness and pain in the temporomandibular joint (particularly left sided), other points of mild tenderness under moderate pressure in the arms and legs; and some restriction of hip movement.
[46] Report dated 12 October 1999, T67.
[47] Ibid.
83. Dr Brook concluded that Ms Brice had fibromyalgia, a condition which he said was generally known to be stress-related, and, whilst not usually caused by a psychological disturbance, known to appear more commonly in those who have experienced childhood abuse.[48]
[48] Id, p 207.
84. Ms Brice said that in 2003 she commenced attending a fibromyalgia support group. She described her symptoms now as involving tiredness if she sits in the one position, chest soreness, and her arms are painful to touch. She manages some housework at her own pace but she firmly believes she would not be able to work. She is easily tired and manages this problem by resting when she needs to and retiring early to bed.
85. Thus until about 1999 Ms Brice did not have any diagnosis for the symptoms that she said she had experienced well before she made her complaint of harassment at work. According to her, pain worsened over time. Notably it became more widespread; and the chest pain worsened.
86. The leading opinion on the condition of fibromyalgia was that of Dr D Champion, Associate Professor of Medicine at the University of New South Wales. A number of the other reporting doctors specifically acknowledged that they deferred to his expertise and diagnosis.
87. Dr Champion noted in his first report that Ms Brice said she was aware of soreness from 1994 and thought it was related to not sitting properly, and she said she had a sore neck dating from the 1991 motor vehicle accident.[49] She was engaged in a lot of keyboard work (this seems not to have been disputed). It seems from his report that Ms Brice acknowledged to Dr Champion that her neck pain and her right hip pain had contributed to the development of her chronic widespread pain. In contrast to Dr Brook, Dr Champion thought there was a substantial component of spinal pain.
[49] Report dated 4 January 2005, T81.
88. Clinically, Dr Champion noted Ms Brice had no particular sensitivity to light touch, but there was mild deep tenderness involving muscle, bone, and other tissue under pressure. Dr Champion said that Ms Brice would fulfil the criteria for fibromyalgia syndrome but stated that he preferred the diagnosis of chronic widespread pain syndrome (with deep secondary allodynia), the causes of which may include injury, psychiatric influences, infectious illnesses, or sensitized pain processing in the central nervous system.
89. Dr Champion said that at the time she left work on stress leave Ms Brice, according to her own account, did not have chronic widespread pain syndrome. The pains that she had then were mainly in her arms and neck and he said that the neck pain would have resulted from the motor vehicle accident. When she was subjected to harassment, the resulting anxiety led to the extension (aggravation) of her chronic regional pain into a chronic widespread pain/fibromyalgia syndrome. Dr Champion identified as the causes of her fibromyalgia:
§ Physical sexual and psychological abuse when aged 7 to 9;
§ The motor vehicle accident in 1991, especially the spinal and hip injuries;
§ Repetitive keyboard work;
§ Stress in the form of harassment;
§ Minor influence from peptic ulcer;
§ Impaired sleep related to anxiety and pain.
90. Dr Champion confirmed in his second report that Ms Brice had an anxiety condition that arose in the context of harassment.[50] In his oral evidence he refined this somewhat. He said that he now appreciated that stress from the work-related harassment, it being sexual in nature, led to a re-activation of her post traumatic stress disorder. He said that post traumatic stress disorder is an important causal influence in the development of chronic widespread pain syndrome. As he interpreted the processes at work, Ms Brice’s anxiety, the consequence of harassment at work, was a causal influence in aggravating her regional pain state, which then developed into a chronic widespread pain syndrome (fibromyalgia). He agreed under cross-examination that the presence of post traumatic stress meant that a somatisation process was operating – that is, one whereby emotions are expressed as bodily symptoms.
[50] Report dated 27 January 2005, T87.
91. In that regard Dr Champion said that he could not accept, as Dr N McGill, neurologist, had done, that fibromyalgia would cease once Ms Brice stopped working at the Electoral Commission. He said that Dr McGill failed to focus on the impact of post traumatic stress. Dr McGill, who had the reports of Drs Champion, Brook, George and Andrews, amongst others, had noted that Ms Brice had full reflexes; normal upper limb movement; normal reflexes in upper and lower limbs; and no observable colour, sweating, swelling or temperature changes.[51] Ms Brice reported to Dr McGill that she had tenderness at several points of her body.
[51] Report dated 13 October 2005, T documents A2006/8, T4.
92. Dr McGill said that Ms Brice had some of the symptoms of fibromyalgia, and he thought that the diagnosis was appropriate even though hers was an unusual distribution of tenderness, and she did not mention sleep disturbance. He noted that fibromyalgia was an imprecise label. He noted also that it was associated with childhood distress. He thought Ms Brice’s condition was unrelated to her workplace harassment and would have been the same regardless of her employment.
93. Dr Champion’s opinion was that, while Ms Brice believed she could not work, he believed that with optimal management some improvement was possible and was more likely than unlikely.[52] Dr Champion said that it would be wrong to assess permanent impairment under Table 13.1 (as Dr Veness and Dr Eaton had done) because Ms Brice’s symptoms were not intermittent.[53] Under Table 5.1 Dr Champion concluded that Ms Brice had a 20% whole person impairment, needing supervision and direction in the activities of daily living, this being provided by her partner.[54]
[52] T81.
[53] Report dated 27 January 2005, T87.
[54] Ibid.
94. Other reports included those of Dr Veness,[55] another practitioner who deferred to Dr Champion. Dr Veness had considered that Ms Brice’s symptoms were consistent with a neuropathic pain syndrome, but he acknowledged in cross-examination that her symptoms might be consistent with a somatoform pain disorder. Dr Veness said that a major predisposing factor for her developing chronic pain was that she had been injured in the motor vehicle accident. When this was superimposed with anxiety arising from the harassment, taken with other physical occupational factors, she developed chronic neuropathic pain which is as an abnormal response to stimuli involving the central nervous system.[56] He said if pain presents as ‘all over’ this tends to suggest it is psychological.
[55] Report dated 10 August 2005, exhibit A4; report dated 14 February 2006, exhibit A5; report
dated 24 November 2006, exhibit A6.
[56] Report dated 10 August 2005, exhibit A4.
95. In oral evidence Dr Veness said that fibromyalgia could have a delayed onset, with six months passing before symptoms develop. He acknowledged the possibility that ongoing neck and upper body pain might be related to the motor vehicle accident, where Ms Brice sustained whiplash injuries.
96. Dr G George, consultant psychiatrist, quoted extensively from Dr Champion’s report and said that he generally agreed with his conclusions but would see Ms Brice’s situation now as being that her anxiety had been converted into somatic complaints that she experiences as real. It was clear in the context of his report that he was referring to the anxiety from workplace harassment. Dr George said Ms Brice’s symptoms would be adequately expressed by the term fibromyalgia, however elsewhere in his report he described it as elements of a somatoform disorder in the context of an accepted diagnosis on her part of fibromyalgia.[57] I did not hear oral evidence from Dr George, and so no further light can be shed on what he might have meant there. However Dr George did conclude that her condition was permanent. He thought that her activities of daily living were affected and she should be rated at the level of 25% under Table 5.1, but as I understand his report he thought that only 50% was attributable to work factors.
[57] Report dated 24 January 2005, T83 p 254.
97. Dr Garth Eaton, occupational physician, saw Ms Brice in 2006 and had the reports of Drs Champion, Veness, Danta and George, but only later was he provided with the hospital records of the admission to Canberra Hospital.[58] He was aware of the motor vehicle accident in 1991. As with others, Ms Brice reported to Dr Eaton that her pain started as upper limb tenderness but then extended to all parts of her body, except her buttocks and abdomen.
[58] Report dated 21 May 2006, exhibit A11.
98. Dr Eaton noted that Ms Brice had a number of negative experiences that could lead to a chronic neuropathic pain disorder (childhood sexual abuse, severe motor vehicle accident injuries, anxiety from harassment at work), but as he understood it, there were no previous psychological difficulties. He said that he deferred to psychiatrists on psychiatric matters.[59] Dr Eaton considered Ms Brice as now incapable of work, given the extended period of her chronic pain and anxiety, and he thought her overall prognosis was poor. Dr Eaton assessed her under Table 5.1 (psychiatric conditions) at 15% but thought that she could be assessed up to 40% under Table 13 (intermittent conditions). This approach was quite correctly criticised by Dr Champion, because Ms Brice’s pain syndrome is not intermittent. It did not seem from his evidence that Dr Eaton had a good grasp of the principles applying in the Guide, and I have not relied on his assessment.
[59] Report dated 23 September 2006, exhibit A12.
99. In 2001, Ms Brice’s general practitioner had also referred her to the neurologist Dr Gytis Danta.[60] Dr Danta was another who deferred to Dr Champion on this question of diagnosis. In his first report Dr Danta said he had found no abnormal neurological signs and said:
I do not think she has a primary neurological disorder.[61]
[60] Report dated 14 February 2001, exhibit A15.
[61] Ibid.
100. In 2006 Dr Danta was provided with additional reports, including material relating to the queried overdose in 1987. Dr Danta ventured the view that depression and the possible rape early in Ms Brice’s life may have contributed to the development of her present condition but he said that was a matter within the expertise of psychiatry.[62] Importantly, he observed that without the assistance of the information about earlier episodes, one would otherwise attribute Ms Brice’s present state entirely to the effects of harassment in her employment.
[62] Report dated 21 September 2006, exhibit A16.
101. In oral evidence Dr Danta said that fibromyalgia is a diagnosis made on clinical examination rather than on objective indicia. He described Ms Brice’s condition a generalised pain syndrome, which could be physiological or psychological in origin, or possibly both.
102. Dr Danta said that he considered Ms Brice had 25% impairment under Table 5.1 because she had the entire elements described at that level. He said she required some supervision and direction (apart from feeding and self care). He thought that there was intermittent interference with certain of the activities of daily living including with her ability to respond to and receive incoming stimuli and her ability to stand and move, these being limited by pain. He agreed with the proposition that sometimes she needs help because she is tired.
IS FIBROMYALGIA COMPENSABLE?
103. Is there a liability to pay compensation for fibromyalgia? I should make plain that I accept the medical evidence that Ms Brice suffers from fibromyalgia, the term most widely used in the reports to describe her constellation of symptoms. Much was made of whether the underlying disorder had a physiological basis, or rather was some kind of somatoform disorder. I do not see that as a question that I need to decide. It may well be, as Dr Danta indicated, a condition that is referable to both. It appears to be one kind of diagnosis that remains the source of continued debate within the medical profession.
104. The numerous doctors who examined Ms Brice accepted her symptoms of pain as real and I have no reason to doubt the correctness of their conclusions. I accept Ms Brice’s evidence that she began to experience pain increasingly during 1994, it then being mostly in her hands and arms. This was confirmed by her complaint of symptoms of this kind to Dr Lark in 1995 and as recorded in the history taken by Drs Nathar and Jones in 1995 and 1996.
105. Clearly this was not a case where Ms Brice was simply making up symptoms well after the event, leaving her claim until 8 years later. The doctors who examined her did not think so either. Some confirmation that she was not exaggerating her symptoms, or falsely attempting to attribute their cause to best suit her case, comes from her own observation to Dr Champion that she believed at the time that her early symptoms were due to the after-effects of the 1991 motor vehicle accident because she had ongoing neck pain after the accident. Dr Champion seems to agree with that, for the early stage of the disease process. However then the symptoms became more widespread, following the harassment at work. As Dr Champion described this process, the condition then developed into the chronic widespread pain syndrome which he and others label fibromyalgia.
106. Before any form of compensation is payable there must be an injury which arises out of, or in the course of employment, or a disease which was contributed to in a material degree by employment. Here what is claimed is that fibromyalgia was a sequel to the accepted condition of the anxiety/stress Ms Brice experienced at the Electoral Commission. So the question is: does the fibromyalgia come within the definition of disease, being an ailment, or the aggravation of an ailment, that was contributed to in a material degree by employment?
107. An ailment may be physical or mental. The definition encompasses disorders, defects and morbid conditions: s 4 of the SRC Act. It is intended as a wide definition, consistent with the beneficial nature of the legislation.
108. In Comcare v Sahu-Khan [2007] FCA 15 Finn J, adopting the conclusions reached by French and Stone JJ in Comcare v Canute (2005) 148 FCR 232, said that the question of material contribution, as is required for liability to arise in respect of an ailment, imposes an evaluative threshold below which a causal connection may be disregarded.[63] It requires an evaluation of all relevant contributing factors for the purpose of asking whether the employment did or did not contribute to the necessary threshold level to the ailment.
[63] At para 13.
109. As I have set out at some length above, Dr Champion’s expertise on the subject of fibromyalgia was acknowledged by the other practitioners called upon by both parties to comment on Ms Brice’s case. I accept Dr Champion’s expertise and opinions. Both were challenged, but not in ways that led me to doubt his conclusions with regard to Ms Brice’s case. I should also say that I accept the factors that Dr Champion identified in his report as contributing to the development of her condition. He identified causation here as multi-factorial, including as factors past sexual abuse and the 1991 motor vehicle accident - clearly neither being related to her employment at the Electoral Commission.
110. I heard evidence, which I accept, that post traumatic stress is linked with the development of chronic widespread pain syndrome, suggesting that this may have been a causal factor in Ms Brice’s case, and as I understood the evidence a condition linked to her abuse as a child. Clearly the serious orthopaedic injuries that Ms Brice sustained in the motor vehicle accident had the potential to result in the later development of pain, particularly with activity. But it was significant, in my view, that these two contributing factors did not lead her to develop persistent symptoms until she developed anxiety interacting with the Assistant Commissioner.
111. Of the remaining factors identified by Dr Champion, the one most directly related to her employment was stress from harassment. But he also mentions peptic ulcer and impaired sleep. Ms Brice’s evidence was that she developed peptic ulcers while at the Electoral Commission, so this suggests some relationship, although there was limited evidence on the point. Impaired sleep may have related to her anxiety, but equally could be attributed to the other psychiatric conditions or episodes - unrelated to employment - that were at play during the time that Ms Brice describes her pain symptoms as spreading.
112. Did this evidence amount to material contribution, or a substantial or considerable contribution? I was satisfied, accepting the evidence of Dr Champion that it did.
113. In the context of the SRC Act, what Dr Champion describes as having taken place with Ms Brice’s symptoms was that an existing condition or propensity, that was present as a result of the motor vehicle accident, was worsened by the harassment in her employment. Her pain worsened because it spread. If pain arising from an underlying condition is worsened or increased by reason of factors of employment, then the employee will have suffered a compensable injury: Tippett v Australian Postal Corporation (1998) 27 AAR 40, citing Commonwealth Banking Corporation v Percival (1988) 20 FCR 176.
114. For these reasons, I concluded that Comcare is liable to pay compensation in respect of fibromyalgia as an injury being an ailment, aggravated to a material degree by her employment. I was satisfied that Ms Brice has suffered injury and the medical evidence indicates that this has resulted in impairment. There is broad agreement that Ms Brice is incapacitated for work.
115. As to her claim for permanent impairment for fibromyalgia, I must first be satisfied of permanence, taking into account the matters in s 24(2) of the SRC Act. The statutory test requires that the condition is likely to continue indefinitely. Applying the test of permanence as set out in McDonald v Director-General of Social Security (1984) 6 ALD 6 it is not necessary to have a settled expectation of permanence, merely that indefinite duration is more likely than foreseeable termination. Considering all relevant factors in s 24(2), and taking account of the length of time that Ms Brice has experienced fibromyalgia, I was satisfied that her condition is permanent. The preponderance of medical opinion is to that effect. Dr Champion in his first report indicated that her condition might improve, but only partially. I see there being little prospect of that.
116. The most difficult question is what impairment rating should be assigned and under which Table. I found the medical evidence about rating this condition, in many instances unhelpful. Few of the doctors had any real grasp of the assessment process taking into account the definition of Activities of Daily Living which is a term that appears within various Tables of the Guide, including Table 5.1.
117. I was mindful that Dr Skinner noted that Ms Brice’s activities of daily living were affected, in that without the supervision of her partner she might not eat (anorexia has been queried in the past). Dr Champion agreed, also stating that she needed supervision and direction provided by her partner and that there were present the necessary modifications to daily living and disturbances in behaviour as would warrant an assessment of 20% under Table 5.1. Table 5.1 requires the presence of any two identified factors (including those referred to by Dr Champion) accompanied by the need for some supervision and direction in activities of daily living. A number of doctors have commented on Ms Brice’s reliance on the cocooning provided by her partner.
118. I found Dr Champion’s assessment the most informed and persuasive. It seems to me that Table 5.1 is the most appropriate Table under which to assess the condition, in what is admittedly a difficult condition to categorise. I was not persuaded that it was appropriate to use Table 13, for intermittent conditions – for the reasons referred to by Dr Champion. Here we are presented with a condition that has both psychiatric and physiological components and I was satisfied that Table 5.1 provides the best means to ascribe an impairment rating in all the circumstances.
119. For these reasons I concluded that the degree of whole person impairment relating to Ms Brice’s fibromyalgia was 20% under Table 5.1.
DECISIONS
120.The Tribunal:
(a)sets aside the reviewable decision dated 10 January 2006 and substitutes the decision that Comcare is liable to pay compensation to Angela Brice for fibromyalgia, it being materially contributed to by her employment with the Commonwealth;
(b)sets aside that part of the reviewable decision dated 26 May 2005 that denied liability for permanent impairment for fibromyalgia and substitutes the decision that Comcare is liable to pay compensation for permanent impairment for fibromyalgia; and .
(c)remits to Comcare the assessment now required under s 24 and s 27 of the Safety Rehabilitation and Compensation Act 1988, with the direction that Comcare take into account that Ms Brice has a 20% whole person impairment as provided for under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment.
In all other respects the Tribunal affirms the reviewable decision dated 26 May 2005.
Either party may make an application in relation to the costs of the proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders that the applicant’s cost be paid in accordance with s 67 of the Act.
I certify that the 120 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Senior Member.
Signed: Michelle J Brazier
AssociateDates of Hearing 27, 28 & 29 November 2006;
9 January 2007.
Date of Decision 27 June 2007.For the Applicant Mr L Grey instructed by Pamela Coward &
Associates.For the Respondent Ms L Walker instructed by Sparke Helmore.
November 2005 (T documents A2006/8 T6) in which liability was denied, and was affirmed in
a reviewable decision of 10 January 2006 (T documents A2006/8 T 15).
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